Yesterday, as part of ongoing follow up on my story in this week’s New York Times Magazine, I posted about a Department of Justice document leaked to me with the wording of their proposal to ban all non-canine service animals. Below the jump, for those interested, I’ve pasted an excerpt from that proposal, which is not yet public. It outlines the arguments the DOJ heard for and against the species ban during this summer’s public hearings, plus the DOJ’s responses, and its final ruling on the issue.

Bottom line:

“The Department agrees with commenters’ views that limiting the number and types of species recognized as service animals will provide greater predictability for public accommodations as well as added assurance of access for individuals with disabilities who use dogs as service animals.

More proposal details below:

“Species limitations … The Department received many comments from individuals and organizations recommending species limitations. Several of these commenters asserted that limiting the number of allowable species would help stop erosion of the public’s trust, which has resulted in reduced access for many individuals with disabilities who use trained service animals that adhere to high behavioral standards. Several commenters suggested that other species would be acceptable if those animals could meet nationally recognized behavioral standards for trained service dogs. Other commenters asserted that certain species of animals (e.g., reptiles) cannot be trained to do work or perform tasks, so these animals would not be covered.

In the [Notice of Proposed Rulemaking], the Department used the term “common domestic animal” in the service animal definition and defined it to exclude reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, or goats), ferrets, amphibians, and rodents. However, the term “common domestic animal” is difficult to define with precision due to the increase in the number of domesticated species. Also, several state and local laws define a “domestic” animal as an animal that is not wild. As a consequence, the Department has decided to limit title III’s coverage of service animals to dogs, which are the most common service animals used by individuals with disabilities.

The Department is compelled to take into account the practical considerations of certain animals and to contemplate their suitability in a variety of public contexts, such as restaurants, grocery stores, hospitals, and performing arts venues, as well as suitability for urban environments. The Department agrees with commenters’ views that limiting the number and types of species recognized as service animals will provide greater predictability for public accommodations as well as added assurance of access for individuals with disabilities who use dogs as service animals.

Wild animals, monkeys, and other non-human primates. Numerous business entities endorsed a narrow definition of acceptable service animal species, and asserted that there are certain animals (e.g., reptiles) that cannot be trained to do work or perform tasks. Other commenters suggested that the Department should identify excluded animals, such as birds and llamas, in the final rule. Although one commenter noted that wild animals bred in captivity should be permitted to be service animals, the Department has decided to make clear that all wild animals, whether born or bred in captivity or in the wild, are eliminated from coverage as service animals. The Department believes that this approach reduces risks to health or safety attendant with wild animals. Some animals, such as certain nonhuman primates including certain monkeys, pose a direct threat; their behavior can be unpredictably aggressive and violent without notice or provocation. The American Veterinary Medical Association (AVMA) issued a position statement advising against the use of monkeys as service animals, stating that “[t]he AVMA does not support the use of nonhuman primates as assistance animals because of animal welfare concerns, and the potential for serious injury and zoonotic [animal to human disease transmission] risks.” See AVMA position statement, Nonhuman Primates as Assistance Animals (2005), available at http://www.avma.org/issues/policy/nonhuman_primates.asp.

An organization that trains capuchin monkeys to provide in-home services to individuals with paraplegia and quadriplegia was in substantial agreement with the AVMA’s views but requested a limited recognition in the service animal definition for the capuchin monkeys it trains to provide assistance for persons with disabilities. The organization commented that its trained capuchin monkeys undergo scrupulous veterinary examinations to ensure that the animal poses no health risks, and are used by individuals with disabilities exclusively in their homes. The organization acknowledged that the capuchin monkeys it trains are not suitable necessarily for use in a place of public accommodation but noted that the monkeys may need to be used in circumstances that implicate title III coverage, e.g., in the event the owner or handler had to leave home due to an emergency, to visit a veterinarian, or for the initial delivery of the monkey to the individual with a disability.

This commenter argued that including capuchin monkeys under the service animal umbrella would make it easier for individuals with disabilities to obtain reasonable modifications of state and local licencing, health, and safety laws that would permit the use of these monkeys. The organization argued that this limited modification to the service animal definition was warranted in view of the services these monkeys perform, which enable many individuals with paraplegia and quadriplegia to live and function with increased independence.

The Department has considered the potential risks associated with the use of nonhuman primates as service animals in places of public accommodations as well as the information provided to the Department about the benefits that trained capuchin monkeys provide to certain individuals with disabilities and has determined that nonhuman primates, including monkeys, will not be recognized as service animals for purposes of this rule. However, state and local governments may be required to accommodate home use of such monkeys by individuals with disabilities as discussed in connection with § 35.136(a) of the final rule for title II.

Having considered all of the comments about which species should qualify as service animals under the ADA, the Department has decided to limit acceptable species to dogs.”

Comments

This is discouraging and actually quite annoying. Domestic is a term that connotes a great deal more than simply being tame. A raccoon that has been tamed and lives in your house is still a wild animal. The process of domestication occurs over many generations where specific traits in an animal are bred for that make them more suitable to their use by people. A domestic sheep is a very different animal from a wild one.

Horses are among the oldest of the domestic animals so to lump them with wild animals and to exclude them for the reasons cited is actually just a sign of gross ignorance. Through their long association with people they have lived just as closely with humans as dogs have. When you stop to think about it the dog was historically just another farm animal, not a household pet. When dogs were first being used as guide dogs, it was not yet that common for dogs to live in houses as pets. They were kept outside to guard the livestock and many people wondered if they could really be kept successfully in urban areas.

While I certainly agree that reptiles and MOST farm animals aren’t service animals, like I mentioned before a mini horse is so small it’s basically useless as livestock, and therefore a pet, and they demonstrably can be trained.

I honestly think that meeting regs that define what a service animal is would be far more appropriate than limiting species. Just because a dog is a domestic species should not qualify it to be a service animal. There are plenty of dogs that would be unsuited in behavior, temperament and ability to be a service animal. Appropriate behavior depends on serious, life long training that most service animals do not receive once they are placed.

My wife is one of the few people in this country who owns a miniature horse trained as a guide. My wife is totally blind and totally deaf in the right ear. She cannot travel independantly without a guide animal. The reason why she chose the horse is due to lifespan: 30 – 40 years. The horse is completely house trained, and actually sleeps in the house (by her own choice – she has full access inside and out at all times she is at home) just as a dog does. She is quite litterally a dog in horse’s clothing. We do not have a farm, and Confetti is the only horse we own, and the only horse we have EVER owned. My wife has had 2 wonderful dogs, but it broke her heart when they died, and she felt she couldn’t go through that again. When her last dog was nearing the end of its working life, my wife told me this was it – no more guide dogs. Six months later we found out about mini horses being trained as guides, we checked it out and she decided this was the alternative she had been praying for. Six years later, her wonderful guide will have to be replaced, not because the guide is not working out or is dying, but because Our Wonderful Government has just taken away her liberty – she can’t travel alone without a guide – and her happiness – she won’t be happy forced to get another dog in order to travel alone — every ten years or possibly less — for the rest of her life.

I do not want to be the one to tell her about this. It is going to devastate her!

Good old U.S.A. — Legislate everything until no one has any rights at all! Of course we all know what is at the base of this deep dark hole we find ourselves in — MONEY — THE ROOT OF ALL EVIL! Comments by BUSINESSES have MORE WEIGHT than those of the disabled, because BUSINESSES HAVE DEEP POCKETS and the disabled can barely SCRATCH OUT A LIVING, never mind provide “gifts” to politicians and bureaucrats.

I agree with Mr. Spencer. I have a wonderful service dog named Jet, but because we are so close, I live in fear of the day when he leaves me. I would not give him up, but if I had been told when I got him that I might have had the option of a companion that would live twice as long, I may well have chosen to try a pony. Also, Jet has all of the aid dog certs, and I just can’t imagine trying to have done all of that training myself. I continue his training as our relationship grows. I firmly believe that every animal classified as a service animal should have this level of training. Every single one represents the whole service animal community, at home or abroad.

I just read your post and one thing that needs to be made very clear – “Seeing Eye” is a trademark owned by The Seeing Eye in New Jersey, the oldest organization for training GUIDE DOGS for the blind. The term “Seeing Eye Dog” can only be used while referencing a GUIDE DOG that has been trained and graduated THEIR training program.

I understand why the name “SEEING EYE ” seems right, just as calling “[whatever brand] Tissues” “Kleenex” is an everyday occurrence for the exact same reason – Kleenex” was the first, so no matter who makes the tissues, its a “Kleenex”. What I am getting at is that The Seeing Eye is very proud of their name and reputation, and they only train DOGS, therefore there is no such thing as a “Seeing Eye Horse”. All dogs trained at other schools to guide the blind are called Guide Dogs or Dog Guides, and also have the prefix for the school where they were trained, so in this same train of thought, miniature horses trained to guide the blind should be referred to as “Guide Horse” or “Horse Guide” in conversation and in print.

Sorry for the long dissertation, but I have great respect for The Seeing Eye, and I do not want them to take the credit or the blame for an animal whose training they had nothing to do with other than the fact that they did it first and were one of the inspirations to other trainers of animals for the blind.

What affects the whole thing is just how new it all is. We are learning things about animal behavior and how animals communicate with each other. The role of pheromones in communications is still poorly known, the subject of myths, and even outright denial. We are in the process of adjusting to our new knowledge, and that leads to problems.

Centuries from now guide horses and therapy baboons will be every day encounters, but for now they are unusual and the subject of misunderstanding. Remaining cool, collected, and poised would do us all a lot more good than getting all bothered and out of sorts.

On its face, the rule seems absurd. But the money quote is “Numerous business entities endorsed a narrow definition of acceptable service animal species,” which makes the purpose clear: it’s just standard Bush administration style deregulation, minimizing the obligations on business, ignoring any other impact.

You do not say exactly why your wife’s guide horse has to be replaced. I would like to know.

And yes, money is involved, but the bottom line is discrimination. I find it outrageous that other people think it’s o.k. to decide for the handicapped what critters are allowed and disallowed to be their service animals. Like the angry guy with the parrot; yes, it’s a singular situation, but it works, dammit, leave the man be.

I relate to your wife’s feelings. When the last dog I owned died, I swore off owning dogs for the same reason. And I’m convinced the horse is better suited to be a guide animal than a dog. Horses are herd animals, dogs/wolves live in packs, the interactive dynamics of these creatures are completely different.

If I can make a suggestion. As I understand it, this regulation only says that dogs are service animals that businesses must accept by law. I don’t think there is anything that says a business cannot accept a horse as a guide animal, just that they can’t be sued under the ADA if they do not.

Maybe they can’t be sued if they don’t accept a horse as a guide animal, but the rest of us sure can boycott that store, which I would do in a heart beat. If a store doesn’t allow horses as service animals, that store will not get my business. If the town the store is in doesn’t allow it, the business will have to move before they will get my business.

Maybe someone who is knowledgeable in such things could design a nice logo that progressive store owners could put up that indicates they accept all trained domesticated service animals.

Chains that do internet business too could mandate that in their retail outlets so people who buy stuff by internet could support those progressive businesses.

I agree about horses. They make much more sense as guide animals. They are herbivores, not carnivores. They have excellent vision, with a near 360 degree field of vision. They are very careful where they step and won’t walk where they might break a leg.

I have to agree, and I’d like to add one more question: what about the people who cannot have dogs? What about handicapped people who are allergic to dogs? This would remove any possibility for them to have a guide animal, period, because it would be limiting them to something they already cannot have.

Obviously whoever thought this one up has little concern for the human beings it would affect.

“I don’t think there is anything that says a business cannot accept a horse as a guide animal, just that they can’t be sued under the ADA if they do not.”

You’re definitely on the right track, but health department rules come into play here, as well as city regulations that disallow farm animals. Really, any sensible health department is going to balk at horses and monkeys in the grocery.

I know this is a nitpick, but this definition (copied below) would seems to neither include nor include a few species, e.g. cats or birds. (And being really nitpicky fish and a many others too!) In some ways this re-enforces the arbitrary nature of this decision.

In the [Notice of Proposed Rulemaking], the Department used the term “common domestic animal” in the service animal definition and defined it to exclude reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, or goats), ferrets, amphibians, and rodents. However, the term “common domestic animal” is difficult to define with precision due to the increase in the number of domesticated species. Also, several state and local laws define a “domestic” animal as an animal that is not wild. As a consequence, the Department has decided to limit title III’s coverage of service animals to dogs, which are the most common service animals used by individuals with disabilities.

There are negatives to guide horses. First they are prey animals meaning the can spook like any other horse. They are very strong id the do spook. They lack the ability to perform intelligent disobedience in new situations. They have trouble going down stairs as they are not build for it. They must live in a country setting and cannot hold it for too long (i think the guide horse org says 3 hours) and the excriment is substantially more. Another issue is breeding these horses to be so small results in genetic health issues, they aren’t as healthy as full sized horses. Horses also are more likely have trouble adapting to new situations or experiences. They must stand and should not lay down long to prevent colic. Therefore cannot go under tables and lay down during meals. Also if you have to move to the city or to a place without much of a yard, you must give up your guide horse. So what is the point of having 25yrs if you are trapped to short outings and must live only in certain places in the country. What happens if a person loses their home and must move to an apartment or assisted living? They must give up their guide horse whereas a guide dog would be able to go along with them and adapt well. I don’t think I’d like to be the one holding the harness when a large loose dog comes charging at the guide horse which is the same size or smaller than the dog. The horses instinct is to run away from the predator. I do think the risk of a pet dog attacking a guide horse is higher than one biting a guide dog.

Some animals, such as certain nonhuman primates including certain monkeys, pose a direct threat; their behavior can be unpredictably aggressive and violent without notice or provocation.

Yet according to the CDC, dogs, not monkeys, killed about 300 people in the U.S. in the last 30 years. They estimate that in one year alone 4.7 million people were bit by dogs, 800,000 of which required medical attention. If the DoJ’s reasoning is that they need to play it safe with service animals, this seems like excellent rational for banning dogs as service animals, not exclusively promoting them. I would assume that a properly-trained guide dog is quite safe, but I would need some actual statistics before jumping to the conclusion that a well-trained animal of any species isn’t equally as harmless.

@Kat:

Another issue is breeding these horses to be so small results in genetic health issues, they aren’t as healthy as full sized horses.

I assume you’re also opposed to the numerous dog breeds that have even more varied health problems because of selective breeding and inbreeding.

The horses instinct is to run away from the predator.

And the dog’s instinct is likely to be to run or fight, neither of which is acceptable in a service animal. That’s what the intensive training is for, regardless of species.

There are many reasons why someone can’t have or wouldn’t want a dog as a guide animal and I fail to see why, if the animal is properly trained and the person has legitimate need, any species shouldn’t be allowed the general legal protection service animals are given.

It appears the DOJ has MISINTERPRETED the intent of the Congress. Public Law 110-325 which was signed into law by President Bush on September 26, 2008 specifically states its intent is to BROADEN the protections of the ADA due to decisions of the Supreme Court decisions of which LIMITED the protections.

To read the entire law go to http://catalog.gpo.gov and search on “americans with disabilities act” (include the quotes in the search terms to limit the returned documents) and read the public law.

This is the reason why the DOJ backed off on the service animals issue and why their “updated” rules are not yet available. To read the current ada rules, go to ada.gov and click on the link in the right column “Title III Regulations”. Somehow I don’t think there are going to be many changes in it.

“Yet according to the CDC, dogs, not monkeys, killed about 300 people in the U.S. in the last 30 years.” == which is about 10/year. Given the MILLIONS of dogs (vice monkeys) owned by people and the often haphazard methods of training (and often abuse), that’s a VERY low number. More people are killed by bees. Horses, by the way, are a well known hazard as they can both kick and bite.
The DOJ decision is very disappointing, but the fact is that unfortunately, there were people who abused the ADA claiming entrance for animals whose “service” was questionable at best. And requiring “accomodations” for a variety of animals makes things problematic — does one have bathroom stalls big enough to accomodate the shetland sized “service” horse (the use of minatures may have been the norm, but it wasn’t previously required to use minatures)? Keep the building warm enough to accomodate the lizard or the monkey? Dogs have been sharing our lives for at least 15,000 years and most likely 10x that long. They are, for most people, an understood quantity. And dogs don’t generally require “special” accomodations — they’ve proven an ability to live with us in a vast array of environments. It may be “money” that drives this, but it’s also unreasonable to expect accomodations to cover “everything” and for businesses to continually pick up the tab for it. At some point a compromise between the welfare of others and that of the individual has to be made. If this goes through, hopefully at some point, other animals will be added — or they’ll figure out how to lengthen dog’s lives to 20 or so.

I agree with Chris that the DOJ is misinterpreting the intent of Congress in redefining “service animal” to be more restrictive – but they’ve had a lot of help from service dog organizations. For some reason, many of these groups have decided to be very vocal about introducing these restrictions. The stated reasons for this viewpoint as best as I can determine is to prevent the erosion of public trust by persons who take their (perhaps poorly trained) pets out in public and “pass them off” as service dogs. I believe that there are instances where this happens. However, educating businesses about appropriate service dog behavior would go far in taking care of this problem. Businesses typically have no problems ejecting poorly behaving humans. They should feel just as confident in asking poorly behaving canines to depart.(I won’t elaborate here since this is a comment about types of disabilities not species but I agree with the arguments in favor of INCLUSION of any highly trained service animal over broad species EXCLUSIONS).

Unfortunately, these service dog groups have chosen to target and restrict the use of service dogs by people with non-“physical” disabilities. They claim that persons with psychiatric disabilties (which I have) are “faking” service dogs for their disability since they are not performing x number of trained physical tasks (my service dog is HIGHLY TRAINED but, no, he does not open doors or pick up my socks). (Actually he can but I rarely need to ask him to.)

Anyway, I do NOT believe that this is a reasonable or moral rationale for restricting my right to have a service dog for a psychatric disability. These service dog groups state that all service dog work that cannot be specifically described as a physical tasks should be excluded. They do not provide a comprehensive list of what these “tasks” should be but they have spelled out what they think they should not be. They have requested that the definition be changed to specifically exclude emotional support even when a dog has been specifically trained to support a partner with a diagnosed emotional disability in a public situation, and work such as greeting people to provide a social inlet and/or buffer, and advanced training in providing physical or eye contact to prevent dissociation or other disabling symptoms – often referred to as “grounding”. These are examples of the work that my service dog does for me on a daily basis. It may not be obvious to the casual observer but I can certainly confirm that the effect my dog has in ameliorating the symptoms of my disability is the result of years of training and partnership!

Since they have not ask for a list of acceptable tasks to be included in the definition – just the exclusions I mentioned above, I wonder where a dog that has no training but alerts to seizures or low blood sugar would fit? In or Out? What about someone who has occasional balance issues during episodes of pain caused by Sickle Cell Anemia or some other medical condition. Is their dog only a service dog when they are in crisis? If not, what are the “tasks” it is perform the rest of the time. Surely not reassurance and emotional support? That is excluded!

Oh well. I just happened upon this blog. Don’t know who reads it or whether my comments matter. I just keep speaking up whenever I get a chance because I need my dog to live a normal life and I’m afraid I’m going to lose the right to take him with me. I will become housebound (again) and that is darn sad.

I am a person with a severe to profound hearing impairment.I am told by my doctor I will lose at least 1 decibal of hearing a year so in 10 years I will probably be totally deaf.12 years ago my husband and I purchased a capuchin monkey and trained it ourself to be a hearing service animal for me. I never took it into a public setting.When we traveled we would drive start to our destination. I only need her in my home in which she is trained like that of a Helping Hand monkey, free to move within the home without a leash to do her service.Now I know Helping Hands has done a wonderful service for the quageplegic but they will not recognize that my trained capuchin is a service animalalso and my disability is legitimate as any other handicap. This organization does not care about my disability and will step on little people like me in order to make sure their organization of monkeys get passes as service animals by the ADA but not my well train capuchin or others who have trianed them on their own. the cost of paying for a trained animal is ridiculous.$30,000 for a hearing dog that will need to retire after 10 years of service. A capuchin can live 40-50 years. They are so intelligent they keep learning to meet the needs of a disablity but a dog will only learn his few tricks and that is it.people are allergic to dogs so bringing them into the public can make many people sick. I too spend almost $800.00 a year for vet cost to ensure my capuchin is healthy.I need to travel with my capuchin in same scenerio cases as H.H mentioned they woudl also in cases of travel or emergencies, yet they refuse to acknowledge that other people not just them can train a monkey to do a service task specifically for the individual’s disability needs.I think we could make it work. Just make the rules for having service animals stricter. A person should need to show proof of their disability if it is not visble.We have to show our driver’s license.Maybe a service animal permit could be issued where we must show we are taking animal to vet and animal is really doing a service task for us and states whether their task is needed in public setting like stores or restaurants or not..paying for a permit would be money coming into the government.This would eliminate the frauds and those abusing the rules.I know many people do not need to take their service animal to a mall, restaurant or store. I would guess about 90% of service animal are not needed there. It is when one has to travel or in cases of fire or emergency where the animal is needed to be with owner and protected as a service animal.Animals have been being used in labs for years to serve man kind .Here is a way in which they can but in a humane way that is rewarding to the disabled as to the animal. I know my capuchin holds her head high when I praise her for her good work!

Doren, I am sorry for the trouble you have in getting your capuchin recognized and issues with Helping Hands. But, I take offense to your comment “a dog will only learn his few tricks.” What my dog does is not a trick just as what your monkey does is not a trick … or is it?

I also take offense to your suggestion of requiring some sort of permit … money to the government you say. I am guessing you and your husband live on more than $800 a month. Many people with disabilities live on Social Security and/or SSI. Individuals with disabilities are disproportionately unemployed and chronically underemployed. As a person with multiple disabilities, and I know I speak for many, I have numerous costs related to my disability that non-disabled people don’t have which further erodes my limited income. Why should I (we) be forced to take on yet another financial burden by obtaining some permit through the government.

If my disability is not visible, why should I be held to this significantly higher standard and be required to share my medical condition as you spell out above? That is a bit personal you know and unfortunately when word gets out you have a disability the door to stigma and discrimination is wide open. And if we open the door by requiring people to “prove” they are “worthy” to have such an animal and then “judge” the actual work the animal does then we are setting ourselves up to divide the disabled community into the “haves” and “have nots.”

When we put a person or agency in charge of something like this then their biases come in to play. Unfortunately disability doesn’t just mean blind or paralyzed. Rather disabilities encompass every bodily system and function and as such one blanket set of rules or criteria will not be inclusive to everyone with a disability … tarnishing the spirit of the ADA.

It’s been awhile since anyone posted here, but I just found this blog, and want to say the anon post of April 14 is right on.

HIPPA says our medical information is private. We should not have to provide it to Walmart greeters, waitresses, etc.

And more money out for a permit? We already pay for dog licenses. If they want ID, let the gov put it on the tag we get for our dogs, the same as is done for license plates on our vehicles.

As for training, the services needed vary from one disabled person to another. Where are you going to find qualified trainers for all the different disability related services performed by these animals? And how does one demonstrate the animal’s service without, for example, having a seizure, so it can be proven that the animal assists?

A recent experience at Walmart is an example of some people’s ignorance about service animals. My “ServiceDogBear” twittered about it, and there’s a link to a blog. It’s a new blog, a new twitter account, inspired by the incident. If you want to read about it, look for ServiceDogBear on Twitter and follow the link to the blog.

In fact, I think I’m going to borrow anon’s post for a very clear and articulate discussion about it. Just because Pres.Obama put a halt to the issue doesn’t mean it’s over by a long shot. Those of us who object to the DOJ stance need to keep the discussion going until it’s resolved.

please stop these people selling monkeys as for service monkeys to help with disabilities these people are full of monkey business lies tricking people in ways to get these animals in restaurants and grocery stores these people are animal brokers. Joan Newberger, James Poole
Thanks for your time.